There was a lot of celebrating by some in the media and many on the political left on Thursday when the Supreme Court announced its decision on the legal challenges to the Trump administration’s actions to rescind DACA.
From The Washington Post: “Supreme Court rules against Trump’s attempt to end DACA, a win for undocumented ‘Dreamers’ brought to U.S. as children.” And from NPR: “Supreme Court Upholds DACA, Ruling Against Trump Administration.”
Democrats on Capitol Hill also took a victory lap, with The Hill reporting: “Schumer says he cried ‘tears of joy’ over DACA decision.”
But what exactly did the court decide? Is DACA now legal?
Well, no — actually, the court never ruled on this.
As Justice Samuel Alito pointed out in his dissent, the court “tells the Department of Homeland Security (DHS) to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire presidential term. Our constitutional system is not supposed to work that way.”
And if you’re curious, the answer to the legality question is pretty clear, as Justice Clarence Thomas explained: “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception.”
So, what did the court decide? For all the non-lawyers out there, including myself, Justice Thomas makes it pretty clear: “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum. Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.”
Okay, so the court ruled that there was some kind of procedural error in rescinding DACA — government is big and complicated, and as I pointed out in my book, “Trump’s Enemies,” sometimes bad and incompetent people end up with important government jobs and big responsibilities. I can understand an error occurring.
But what did Justice Thomas mean when he said that this “is anything but a standard administrative law case?” Read this next quote from his dissent to the decision carefully:
“Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
Oh.
Parse this out carefully. According to the court’s decision, a presidential administration (like the Obama administration) is able to direct its executive agencies (like the DHS) to enact unlawful public policy decisions outside congressional authority (like DACA), and a future presidential administration (like the Trump administration) has to continue enforcing these illegally made-up “laws” unless the court finds the reasoning for rescinding them NOT “arbitrary and capricious” according to some statutes on administrative procedure.
It used to be, according to the Constitution at least, that Congress makes laws, the Executive Branch enforces them, and the Judiciary has the final say on whether or not certain laws are, in fact, constitutional. Now, under this decision, the Executive Branch is allowed to make laws outside of Congress’s purview and these laws have to remain in place across presidential administrations unless the Supreme Court deems a current presidential administration’s reasons for ending these made-up “laws” sufficient.
This is a radical change — and it’s not for the better.
The Constitution is the greatest governing document humanity has ever created, and I mourn its latest wounding at the hands of the Roberts Court. But if the Democrats want to play this game, I think it’s important for the Trump administration to heed the words inscribed on the inside of the Jefferson Memorial in Washington: “Institutions must advance also to keep pace with the times.”
Given the implicit approval of the court, why shouldn’t the Trump administration just enact every policy objective President Trump spoke about during the 2016 campaign through its executive agencies? According to the court, the policies will have to remain as de facto “law” unless a future administration is able to provide sufficient reasoning to undo them. What should be the first on the list? How about a new decision by DHS not rescinding DACA but just saying that its new policy is to not follow its provisions. Maybe that will make Chief Justice John Roberts think again about his judicial philosophies.
This decision by the court could go down as possibly the biggest boost to the “imperial presidency” that has ever happened. Imagine the dangerous decisions to freedom of expression, religious freedom, Second Amendment rights, foreign policy and even capitalism itself that could be made by the executive agencies of an Ocasio-Cortez administration.
I hope Justice Thomas’s warnings about what this decision could foster aren’t borne out in the coming years. But if expansive, unlimited and difficult-to-reverse executive action is the pace of the times, the Trump administration would be doing a disservice to the American people by missing it — because you can be sure a democratic socialist administration won’t.
Corey R. Lewandowski is President Trump’s former campaign manager and a senior adviser to the Trump-Pence 2020 campaign. He is a senior adviser to the Great America Committee, Vice President Mike Pence‘s political action committee. He is co-author with David Bossie of the new book, “Trump’s Enemies” and of “Let Trump Be Trump: The Inside Story of His Rise to the Presidency.” Follow him on Twitter @CLewandowski_.